Steven McKee v Peel Tyre Service

[2018] FWC 6323

[2018] FWC 6323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven McKee
v
Peel Tyre Service
(U2018/8287)

COMMISSIONER WILLIAMS PERTH, 12 OCTOBER 2018

Termination of employment - jurisdiction - national system employer.

[1] This decision concerns an unfair dismissal remedy application made by Mr Steven McKee (Mr McKee or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The application identifies the respondent as “Peel Tyre Service” (Peel Tyre Service or the Respondent).

[2] The Respondent filed a Form F3−Employer Response to Unfair Dismissal Application (the F3) which identified the legal name of the business as MC + RJ Cook and the trading name as Peel Tyre Service. The Respondent is in Western Australia.

[3] The F3 indicated the Respondent objected to the application on the grounds that the Applicant was not dismissed.

[4] Subsequently the Respondent’s lawyers wrote to the Commission and advised that the Commission has no jurisdiction as the Respondent is a partnership.

[5] Consequently the Commission wrote to the parties and directed the Respondent to provide submissions and witness statements in support of its objection that the Respondent is not a national system employer and so Mr McKee is not able to make this application.

[6] In compliance with these directions the Respondent provided a witness statement from Mr Cook which confirmed the legal identity of the Respondent was as set out on the F3 and the Respondent is not a corporate entity but rather a partnership.

[7] The submissions referred to the definition in section 14 of the Act of a national system employer and argued that the Respondent was a partnership between two natural persons and so not a national system employer and accordingly this Commission has no jurisdiction to consider the application.

[8] The directions required the Applicant to provide materials in reply however as at the date of this decision nothing has been received from the Applicant.

Consideration

[9] I am satisfied on the materials provided to the Commission that the Respondent is not a national system employer.

[10] Section 380 of the Act states that in Part 3–2 Unfair dismissal of the Act “employer means a national system employer.”

[11] As the Respondent is not a national system employer the Respondent is not an “employer” for the purposes of Part 3–2 Unfair dismissal of the Act. Consequently Part 3–2 Unfair dismissal of the Act, including section 394 under which this application was made, does not apply to the Peel Tyre Service and the Applicant is not able to make this application.

[12] The Commission cannot consider this application and it will now be dismissed for want of jurisdiction. An Order [PR701242] to that effect will now be issued.

Final written submissions:

Respondent, 25 September 2018.

Printed by authority of the Commonwealth Government Printer

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